Responding to Rhetoric Against Judges

The remedy for speech, it’s said, is more speech. Hostile political rhetoric increasingly threatens both the institution of the judiciary and the individuals who serve as judges.  In an era when partisan politics threatens our judicial merit selection process and judges themselves suffer violence at the hands of disgruntled litigants and defendants, lawyers must start speaking out on behalf of the system they serve.

By Karna M. Peters

We’ve all been hearing increasingly hostile political rhetoric about the judiciary.  “Activist judges” is a phrase commonly heard.  Another expression, less loaded but still suggesting general distrust of the judiciary, is “let’s keep this out of the hands of the judges.” 

Even the words “judicial independence,” which most lawyers recognize as shorthand for an essential pillar of our system of constitutional checks and balances, are now heard by many people to mean “judicial arrogance” — the idea that judges are somehow making decisions without regard to the law, with no accountability.1

How do we respond? My guess is that so far, most lawyers have simply let it blow by.  Many of us are naturally reticent about wading into political waters.  We know that such rhetoric has been used by partisans in our State Legislature and the United States Congress, and by President George W. Bush.

It’s time to move beyond the politics and start speaking out, based on our professional Code and our understanding of the role of the judiciary under the Constitution. If we do nothing, this unchecked, hostile rhetoric could incite violence against judges, lawyers and the public. We are at a critical juncture in our state and our country.  No one should look back at this point in time and ask:  “Where were the lawyers?”

Professional Responsibility

Our Rules of Professional Responsibility suggest that we do need to respond to the hostile rhetoric, in order to defend the judiciary against unjust criticism.

Rule 8.2(a) of the Minnesota Rules of Professional Conduct prohibits a lawyer from making a statement “that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge … or of a candidate for election or appointment to judicial or legal office.” This language suggests that lawyers should not be casting aspersions on judicial integrity by saying we cannot trust judges.

The Comment to that rule goes further, and encourages lawyers to defend judges and the judiciary against unjust criticism, in order “to maintain the fair and independent administration of justice.”2

Our first job should be to reassure people that we do have a fair and impartial judiciary in Minnesota. We have a merit-based selection process that has been followed by several governors in succession and that works well. We have a Board on Judicial Standards that effectively oversees the conduct of our judges.  Indeed, Minnesotans are directly involved in judicial oversight through their opportunity to vote in judicial elections.

We should be very direct and say that terms such as “activist judge” are misleading and loaded. They certainly do not apply to our judiciary in Minnesota.  Ask people to avoid using these terms or any other language that suggests unfair general criticism of our judiciary. 

Beyond Partisanship

In Minnesota, the hostile rhetoric is tied to the very real danger that our current system of merit selection and judicial elections will be replaced by partisan politics, in the wake of the United States Supreme Court’s Republican Party v. White decision.3  Although an in-depth discussion of judicial elections is beyond the scope of this article, there are a few key points that I think lawyers should emphasize in discussions with nonlawyers, in defense of an impartial judiciary. 

First, the Minnesota State Bar Association has formed a Judicial Election Campaign Conduct Committee that has been working to preserve impartiality in our judicial elections. It will be asking judicial candidates to sign an “Affirmation Regarding Responsible Judicial Campaign Conduct,” which includes a statement that the judicial candidate will not seek or use political party endorsements.4

Second, former Governor Al Quie is chairing a recently formed, bipartisan citizen’s commission, the Minnesota Citizens Commission to Preserve an Impartial Judiciary, that will be studying alternatives to minimize political interference with the judiciary. Governor Quie, a Republican, started the merit-based judicial selection process while he was governor, in response to a concern that his Democratic predecessor had appointed judges based on political affiliations.

Constitutional Wisdom

In her recent speech at the University of Minnesota, former Supreme Court Justice Sandra Day O’Connor asserted that she was “saddened and disturbed” by verbal attacks on federal and state court judges by members of Congress and state legislatures.5 She pointed out that these and other efforts to politicize the judiciary are contrary to the wisdom of the framers of the Constitution, who knew that “without justices who could and would make decisions that they knew were unpopular, we would lose the protections of our Constitution.”6  The value of an independent judiciary is that judges will be able to make the tough and sometimes unpopular decisions that protect our rights under the Constitution.

I was a part of the audience of 4,500 people who came to hear Justice O’Connor speak. The next day I talked with a lawyer and a nonlawyer who were also there.  Each of them agreed that they were somewhat disappointed.  They had hoped Justice O’Connor would have said more about her concerns, because her statements on judicial independence were contained in just a few sentences at the end of her speech. I think this reaction reflects not only a deep respect for Justice O’Connor’s opinions, but also a hope that lawyers and judges generally will do more to explain and defend the judiciary’s role under our Constitution in the face of partisan rhetoric.

My experience in other contexts affirms that members of the public want lawyers to address these issues. A few years ago I spoke at a local women’s club about our judiciary and the threat of partisanship.  Several of the women told me later that they were grateful I had spoken on this topic.  They said that they knew little about our judiciary, and also felt a little frustrated about this, particularly when it came time to vote in judicial elections

Risks of Not Responding

What are the consequences if we don’t speak out?  The first and obvious consequence is that Minnesota’s judiciary will be at risk of being taken over by partisan judicial politics.  In other states, this has led to corruption.7  We can explain the risks to people this way: do you want judges to make decisions based on the facts and law of your case, or do you want judges to make decisions based on whether you are on the list of their campaign contributors?

We also need to consider a less obvious potential consequence of our failure to counter hostile rhetoric.  By failing to respond we may tacitly encourage physical threats and violence to judges, as well as those around them.

Our district court judges see angry people in court every day.  From the perspective of these people, judges are taking away their freedom (putting them in jail), taking away their children in custody fights, and dividing property in divorces where no one walks away happy. Some of these people naturally will direct their anger at judges. 

So what do these already angry people think when they hear a phrase like “activist judges?” It could legitimize their anger, and trigger an offshoot of anger — vengeance.  People are more likely to act out of vengeance if they believe that ordinary rules have broken down or are not being followed. Think of “vigilante justice.”8 If people already angry at judges hear rhetoric suggesting that judges are arrogant and not following the rules — in essence, that the rule of law has broken down — they may be more likely to act out against judges (or possibly others), and to take the law into their own hands.

And then what if these same angry people hear the phrase “activist judges” from their church pulpit or from TV evangelists?  Will this give them the idea that the vengeance response is not only legitimate, but sanctioned by a church or religion?

In a recent article in the California Lawyer, a past president of the National Association of Women Judges outlined a link between political rhetoric against judges and the levels of threats judges face: When “responsible people such as [U.S. Senator Cornyn] say such negative things, it creates a feeling among the public that it’s OK to blame judges for everything that’s wrong. Any time you use a judge as a lightning rod, it increases the hostility that people feel.”9

Tempering the Tone

Some might “pooh-pooh” this concern, saying that we always are going to have deranged or angry people, that we can’t control that, and that this goes with the territory for judges.  From my perspective, protecting judges and prosecutors should be sufficient reason for trying to calm and temper the tone of the rhetoric.

Ask judges, and they will tell you that they live with threats — sometimes overt threats, sometimes the implicit threat of knowing that angry people are loose and not yet apprehended.  Threats of violence against judges have been carried out in our area:  the homes of two judges were bombed in Austin and Blooming Prairie, Minnesota in the 1980s, and a judge was wounded in 1992 in his courtroom in Grand Forks, ND.10 In June of this year, a businessman and disgruntled divorce litigant was charged with the sniper shooting of a family court judge through the third-story window of the courthouse in Reno, Nevada.  A court clerk, wounded in the same incident, was hospitalized to remove shrapnel.11

Just a little over a year ago, federal district court Judge Joan Lefkow’s husband and mother were shot to death in her Chicago home by a defendant who was seeking revenge against Judge Lefkow.  If she and her 16-year-old daughter had been home, they also would have been killed.

A few months later, testifying before the Judiciary Committee of the United States Senate, Judge Lefkow ended with the following plea: 

If we have any doubts about the danger of hostile rhetoric, let’s think more about the risks of possibly inciting even one or two more people to commit violence.

Not Only About Judges

This issue isn’t just about the judges — it’s about lawyers, witnesses, court staff, law enforcement, county, state and federal employees who may work in buildings with judges, and families, because parents sometimes bring children along as they do business in courthouses.  Look at the plot discovered this April in Rice County, Minnesota.  Two brothers were threatening a Rice County district judge, an assistant county attorney, and a sheriff’s deputy, all of whom participated in a 2004 drug case involving one of the brothers. The brothers plotted to blow up the Rice County Courthouse and law enforcement center, and they had the means to carry out their plan: two propane tanks filled with explosives and fertilizer. The devices weighed 62 pounds each and, according to the sheriff, “probably could kill everybody here.”14 “Everybody” included all the county employees, court staff, and law enforcement personnel in that complex and any members of the public who happened to be in the courthouse.

The explosives in the Rice County plot were similar to those used to blow up the Alfred P. Murrah Federal Building in Oklahoma City 11 years ago.  One hundred sixty-eight people died in the Oklahoma City bombing, including federal employees and 19 children in a day care center located there

In light of the possible dangerous consequences, it isn’t enough for us simply to respond to the rhetoric if we hear it in our presence.  We need to go out to our communities, and to speak to local civic groups, church organizations, and clergy.  We need to talk to our elected officials.  Take this article and use it as a blueprint. Talk about the fair and impartial judiciary we now have; talk about Justice O’Connor’s concern that rhetoric threatens our independent judiciary, and why that matters; and talk about the difficult decisions that judges make, how they have to deal with angry people, and the danger of inciting violence against judges through hostile rhetoric. The title of one of Flannery O’Connor’s short stories, which often deal with violence, ought to give us impetus: “The life you save may be your own.”15 s

Notes
1 “At Risk:  Four Judges Tell What It’s Like to be a Target,” California Lawyer (December 2005), at 29.
2 “To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.” Comment to Rule 8.2(a). 
3 Republican Party of Minnesota v. White, 536 U.S. 765 (2002). 
4 For a copy of the full Affirmation and other information on the efforts of the MSBA’s Judicial Election Campaign Conduct Committee, see www2.mnbar.org/committees/Campaign_Conduct/index.htm.  Generally, the MSBA’s “judicial independence” website is a helpful resource for speeches and articles that advocate merit-selection criteria for selection of judges.
5 “O’Connor decries attacks on judiciary,” Star Tribune (May 24, 2006).  
6 Id. 
7 For a discussion of impacts of partisanship in judicial elections, see the “Justice at Stake” website, www.justiceatstake.org/
8 Susan Jacoby, Wild Justice, at 52-54 and passim (Harper & Row, 1983).
9 Remarks of Judge Sandra A. Thompson, from “At Risk:  Four Judges Tell What It’s Like to Be a Target,” California Lawyer (Dec. 2005), at 29.
10 R. Franklin and R. Furst, “Alleged Plot to Bomb County Courthouse Uncovered,” Star Tribune (April 4, 2006).
11 “Wounded at the Courthouse: Judge shot in Reno,” Las Vegas Review-Journal (June 13, 2006), www.reviewjournal.com/lvrj_home/2006/Jun-13-Tue-2006/news/7931187.html  A family lawyer who practices before the judge said that she did not believe the shooting was random:  “Divorce attorneys and family court judges are more likely to get hurt, killed and threatened.” Id.  See also Sandra Chereb, “Fugitive Wanted in Wife’s Slaying, Judge’s Shooting Headed back to Nevada, San Diego Union Tribune (June 24, 2006), www.signonsandiego.com/news/nation/20060624-0224-courthouseshooting.html
12 The New York Daily News reported that on May 1, 2005, TV evangelist Pat Robertson said on “This Week with George Stephanopolous” that federal judges posed a threat “probably more serious than a few bearded terrorists who fly into buildings.”  www.nydailynews.com/front/story/305721p-261517c.html
13 Testimony of Joan Humphrey Lefkow, U.S. Dist. Judge, Northern Dist. Illinois, before the Judiciary Committee of the U.S. Senate, May 18, 2005(Chicago Tribune Online, www.chicagotribune.com)
14 Id.
15 Flannery O’Connor, from a collection of stories in A Good Man is Hard to Find, in “3 by Flannery O’Connor,” (Signet Books/Harcourt Brace Jovanovich, 1955).

KARNA PETERS is a partner in the Alexandria firm Peters & Peters, PLC.  A 1986 graduate of the University of Minnesota Law School, she clerked for the Hon. Harlington Wood, Jr., of the 7th U.S. Circuit Court of Appeals, and practiced with Latham & Watkins in San Diego, California before returning to Minnesota in 1993. She is a past president of the 16th District Bar Association and currently chairs the Board of Minnesota Continuing Legal Education.